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No. 00-421 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 248 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

LAURENCE JOE BAUER, JR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

Honorable John Warner, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Jeremy S. Yellin, Attorney at Law, Fort Benton, Montana 

For Respondents:

Honorable Mike McGrath, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana 

David G. Rice, County Attorney, Havre, Montana

Submitted on Briefs: May 4, 2001 

Decided: December 6, 2001

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Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Appellant Laurence Joe Bauer (Bauer) was charged with Criminal Possession of 

Dangerous Drugs in the Twelfth Judicial District Court, Hill County. Bauer filed a motion 

to suppress all evidence derived from his stop, arrest and search. The motion was denied, 

and Bauer entered a guilty plea, reserving his right to appeal from the denial of the motion. 

We reverse. 

¶2 We restate the issues as:

¶3 1. Whether the District Court properly denied Bauer's motion to suppress and dismiss 

for lack of a particularized suspicion justifying the investigative stop.

¶4 2. Whether the District Court correctly concluded that Bauer could be arrested and 

detained for the offense of unlawful possession of alcohol without violating the 

constitutional right to privacy, the prohibition against unreasonable searches and seizures, 

and the prohibition against cruel and unusual punishment.

¶5 3. Whether the District Court properly denied Bauer's motion to suppress and dismiss 

on the grounds of selective enforcement of the law.

¶6 Because we reverse on Issue 2, we do not reach Issue 3.

Facts and Procedural History

¶7 On November 18, 1999, at approximately 2:47 a.m., the Havre Police Department 

received a complaint that "two people were messing around with cars" and were running 

toward the Post Office. The caller did not provide the dispatcher with a description. 

¶8 Havre Police Sergeant Ostwalt responded to the complaint. He began searching the area 

east of the Post Office and noticed a person walking down the street. This person was later 

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identified as Bauer. When Bauer saw the patrol car, he started to run. Ostwalt requested 

assistance from Officer Rory Romberg and Patrolman Earl Campbell. Romberg eventually 

found Bauer hiding in a housing area. Bauer complied with Romberg's request to come out 

and place his hands on the back of a parked vehicle. When Ostwalt arrived, he 

immediately placed handcuffs on Bauer and patted him down. Ostwalt observed that 

Bauer's eyes were red and glassy looking and that he smelled of an alcoholic substance. 

Ostwalt asked Bauer why he was running. Bauer said that he initially thought the patrol 

car was his girlfriend's vehicle, and they had just had an argument. When he realized that 

the vehicle was a police car, he decided to hide. After confirming Bauer's age and record, 

Ostwalt arrested him for minor in possession (MIP), second offense. 

¶9 Bauer was transported to the Hill County Detention Center and was searched as part of 

the standard booking procedure. During the search, a plastic baggie containing cocaine 

was found in his pants pocket. Bauer was then charged with Criminal Possession of 

Dangerous Drugs in violation of § 45-9-102, MCA.

¶10 Bauer moved to suppress the cocaine and dismiss the charge, arguing that his arrest 

was an unlawful seizure in violation of the Montana Constitution and the Fourteenth 

Amendment of the United States Constitution. Additionally, he argued that Ostwalt did 

not have a particularized suspicion to stop him and that statements he made after the stop 

should be suppressed because he was not given Miranda warnings. After briefing and a 

hearing, the court denied the motion to suppress. Bauer subsequently pled guilty to the 

charge against him, reserving the right to appeal the denial of his motion to suppress. 

Discussion

¶11 Did the District Court properly deny Bauer's motion to suppress and dismiss for lack 

of a particularized suspicion justifying the investigative stop?

¶12 This Court's standard of review of a denial of a motion to suppress is whether the 

district court's findings of fact are clearly erroneous and whether those findings were 

correctly applied as a matter of law. State v. Jarman, 1998 MT 277, ¶ 8, 291 Mont. 391, 

¶ 8, 967 P.2d 1099, ¶ 8. A finding is clearly erroneous if it is not supported by substantial 

evidence, the court has clearly misapprehended the effect of the evidence, or this Court is 

left with a definite and firm conviction that the district court made a mistake. Jarman, ¶ 8. 

¶13 The Fourth Amendment to the United States Constitution and Article II, Section 11 of 

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the Montana Constitution protect persons against unreasonable searches and seizures of 

their persons, including brief investigatory stops. Jarman, ¶ 9. Montana requires that a 

peace officer have "a particularized suspicion that the person . . . has committed, is 

committing, or is about to commit an offense" before stopping that person. Section 46-5-

401, MCA.

¶14 In order to prove sufficient cause for a stop, the State has the burden to show: (1) 

objective data from which an experienced officer can make certain inferences; and (2) a 

resulting suspicion that the person stopped is or has been engaged in wrongdoing. State v. 

Dawson, 1999 MT 171, ¶ 17, 295 Mont. 212, ¶ 17, 983 P.2d 916, ¶ 17. See also State v. 

Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. 

¶15 In this case, the District Court found that "it was early in the morning and there were 

few people walking on the streets. Defendant was within close proximity of the location of 

the complaint. There was no physical description of the two individuals available in the 

complaint. Ostwalt's patrol vehicle was clearly marked with reflective striping and top 

lights, and the vehicle could be plainly seen under the street lights. Defendant ran and 

attempted to hide when he saw the patrol vehicle." Based on these facts, the court held that 

Ostwalt had a particularized suspicion to stop and question Bauer. 

¶16 These findings are supported by substantial evidence in the form of Ostwalt's 

testimony at the suppression hearing. We hold that the District Court properly concluded 

that Ostwalt had a particularized suspicion justifying his stop of Bauer.

¶17 Did the District Court correctly conclude that Bauer could be arrested and detained for 

the offense of unlawful possession of alcohol without violating the constitutional right to 

privacy, the prohibition against unreasonable searches and seizures, and the prohibition 

against cruel and unusual punishment?

¶18 Bauer argues that the District Court incorrectly denied his motion to suppress because 

his arrest and subsequent detention for a non-jailable offense were unlawful in that they 

violated his right to privacy, his right to be free from unreasonable searches and seizures 

and his right to be free from cruel and unusual punishment. 

¶19 The District Court concluded that Bauer's arrest was lawful because once an officer 

had probable cause to arrest under § 46-6-311(1), MCA, the right to detain was inherent.

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¶20 The Fourth Amendment protects individuals against unreasonable searches and 

seizures. Hulse v. State, 1998 MT 108, ¶ 12, 289 Mont. 1, ¶ 12, 961 P.2d 75, ¶12. The 

United States Supreme Court recently held that the Fourth Amendment does not forbid a 

warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation. 

Atwater v. City of Lago Vista (2001), 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549. In 

that case, an officer in Texas stopped Atwater while she was driving with her two 

children. None of them were wearing seatbelts. After Atwater's friend came and took her 

children, the officer handcuffed Atwater and drove her to the police station. There, the 

booking officers had her remove her shoes, jewelry and glasses and empty her pockets. 

They took her mug shot and left her alone in a cell for one hour before taking her before 

the magistrate. The magistrate released her on a $310 bond. Atwater, 532 U.S. at ___, 121 

S.Ct. at 1541-42, 149 L.Ed.2d at 558-59.

¶21 The seatbelt law in Texas is a misdemeanor punishable by a fine of between 25 and 50 

dollars. Atwater sued the City under 42 U.S.C. § 1983, claiming that the actions had 

violated her Fourth Amendment right to be free from unreasonable seizure. A divided 

Supreme Court held that, "If an officer has probable cause to believe that an individual has 

committed even a very minor criminal offense in his presence, he may, without violating 

the Fourth Amendment, arrest the offender." Atwater, 532 U.S. at ___, 21 S.Ct. at 1557, 

149 L.Ed.2d at 577. 

¶22 The Texas statute that gave the officer authority to arrest states, "Any peace officer 

may arrest without warrant a person found committing a violation of this subtitle [Rules of 

the Road]." Tex. Transp. Code Ann. § 543.001. This statute differs considerably from the 

relevant Montana statute; therefore, we proceed to an analysis under Montana law.

¶23 Article II, Section 10, of the Montana Constitution guarantees an individual's right of 

privacy. Article II, Section 11, of the Montana Constitution protects the citizens of this 

State from unreasonable searches and seizures. When a law enforcement officer seizes a 

person, constitutional protections attach. State v. Carlson, 2000 MT 320, ¶ 18, 302 Mont. 

508, ¶ 18, 15 P.3d 893, ¶ 18. To determine reasonableness in cases involving searches 

conducted within an investigatory stop, we have held that the State's interest must be 

balanced against the level of intrusion into an individual's privacy resulting from the 

search. Hulse, ¶ 36. We conclude that this analysis applies equally to the seizure of a 

person. 

¶24 Section 46-6-310(1), MCA, provides that "whenever a peace officer is authorized to 

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arrest a person without a warrant, the officer may instead issue the person a notice to 

appear." Section 46-6-311(1), MCA, states that "a peace officer may arrest a person when 

a warrant has not been issued if the officer has probable cause to believe that the person is 

committing an offense or that the person has committed an offense and existing 

circumstances require immediate arrest."

¶25 We have held that an officer's authorization to arrest under § 46-6-311(1), MCA, is 

permissive. Nelson v. Driscoll, 1999 MT 193, ¶ 29, 295 Mont. 363, ¶ 29, 983 P.2d 972, 

¶ 29. Although the statutory scheme gives officers discretion to either arrest or issue a 

notice to appear, § 46-6-311(1), MCA, specifically states that there must also be "existing 

circumstances requir[ing] immediate arrest." We conclude that to be constitutionally valid, 

an officer's exercise of discretion must be reasonable. As such, the district court must find 

that, in addition to probable cause, there were circumstances requiring immediate arrest. 

We hold that in this case, there were no circumstances which required Bauer's immediate 

arrest.

¶26 In justifying his decision to arrest Bauer and transport him to the detention center, 

Ostwalt testified that, "I put him in jail for MIP, but also it would prevent another incident 

between him and his girlfriend for the evening where somebody could have gotten hurt. If 

he's already upset and running from his girlfriend, I sure wasn't going to put them back in 

the same habitat having that happen again."

¶27 Bauer argues that his statement to Ostwalt about the argument with his girlfriend 

should not have been considered at the suppression hearing because he made the statement 

while in custody, and he had not been given the Miranda warning. The State conceded at 

the beginning of the suppression hearing that the statements were not relevant to the 

offense charged and would not be used at trial. The District Court agreed that the 

statements would not be admissible at trial, but allowed them to be used at the suppression 

hearing. 

¶28 In a suppression hearing, a court must consider the totality of the circumstances. "In 

evaluating the totality of the circumstances, a court should consider the quantity, or 

content, and quality or degree of reliability, of the information available to the officer." 

State v. Gilder, 1999 MT 207, ¶ 11, 295 Mont. 483, ¶ 11, 985 P.2d 147, ¶ 11. 

¶29 At the end of the suppression hearing, the court noted, "I have no evidence that this 

particular individual constituted a danger to himself or anyone else. He cannot be arrested 

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under the evidence that I've received for domestic abuse, because there's no evidence, and 

even upon inquiry by the Court by rather leading question, the officer has no evidence that 

this person committed any assault or may have been, quotes, in an argument, end quotes. 

But I have no evidence . . . that he needed jailing, in other words, for his own safety or 

otherwise that he was that drunk." We conclude that the District Court properly considered 

the statement as part of the information available to the officer at the time of the arrest.

¶30 Bauer argues that the District Court's finding that there was no evidence that the 

officers knew at the time of Bauer's arrest whether it was his first, second or third offense 

for MIP, was clearly erroneous. We agree. Ostwalt clearly testified that he had confirmed 

Bauer's age and record at the scene, before bringing Bauer to the detention center. He 

testified that he arrested Bauer for MIP, second offense. Therefore, at the time of the 

arrest, Ostwalt knew that imprisonment was not a potential punishment.

¶31 The District Court also found that there was no evidence that Bauer constituted a 

danger to himself or others and there was no evidence of domestic abuse or that an assault 

had occurred. These findings are supported by substantial evidence. Both officers involved 

testified that Bauer was cooperative and compliant after he was stopped. Ostwalt testified 

that he was acquainted with Bauer and he had never had a problem with him. The only 

evidence indicating any type of assault or domestic abuse was Bauer's statement that he 

had an argument with his girlfriend. 

¶32 Based on these findings, and the fact that Ostwalt was aware that it was Bauer's 

second offense for MIP, a non-jailable offense, we hold that the District Court incorrectly 

concluded that Bauer's arrest was lawful. There were no circumstances which required 

Bauer's immediate arrest. 

¶33 We hold that under Article II, Section 10 and Section 11, of the Montana Constitution, 

it is unreasonable for a police officer to effect an arrest and detention for a non-jailable 

offense when there are no circumstances to justify an immediate arrest. In the absence of 

special circumstances such as a concern for the safety of the offender or the public, a 

person stopped for a non-jailable offense such as second offense, MIP, or a seatbelt 

infraction should not be subjected to the indignity of an arrest and police station detention 

when a simple, non-intrusive notice to appear pursuant to § 46-6-310(1), MCA, will serve 

the interests of law enforcement. 

¶34 Because the arrest was unlawful, the search at the detention center was likewise 

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unlawful and fruits of that search must be suppressed. We reverse the District Court's 

denial of the motion to suppress and remand for proceedings consistent with this opinion.

/S/ W. WILLIAM LEAPHART

We concur: 

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ TERRY N. TRIEWEILER

/S/ JIM RICE

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